I participated in a webinar today about the FLSA and breaks and meal times. I have written about this before (see Breaks, Meal Times and the FLSA) so I am not going to repeat that information. In the discussion we were having I mentioned that employers needed to pay attention to recording break times because their employees may be doing so on the new USDOL Timekeeping app that has just recently been released.
It goes by the very creative name of DOL-Timesheet. You can download it from I-tunes, as can your employees, and thus track time on your smart phone. But it is more that just a time tracker. It also has links to the DOL for information. It also calculates their overtime for them. As the description says “This is a timesheet to record the hours that you work and calculate the amount you may be owed by your employer. It also includes overtime pay calculations at a rate of one and one-half times (1.5) the regular rate of pay for all hours you work over 40 in a workweek.” By the way, one of the features is a link to the DOL to send your timesheet to the government in order to aid in an investigation of employer wrong doing. Pretty nifty huh?
In an article in the July 31, 2011 Atlanta Journal-Constitution, attorney Jay Swartz with the law from of Ashe, Rafuse & Hill, LLP, says this application may put another twist into the employer-employee timekeeping mix but it does not change the rules that require an employer must pay non-exempt employees for time worked. He did bring up a point that I thought was a good one in the use of this app. This application may be used by employees who are working away from the office in “non-working” hours. They answer an email or take a telephone call and then log the time into their smart phone application. This would be time that needs to be tracked but the ‘norma’ method of tracking time, such as a time clock, is not available.
He suggests, and I agree with him, that all employers should have a policy in place addressing the use of alternative timekeeping methods. He states:
A new ppolicy might state that if employees voluntarily use any timekeeping method in addition to the company’s established system, they are required to submit such records on a weekly basis by a specified time and to a specified person. If employees are provided this option and voluntarily take advantage of it, it may blunt any later claim that the employer knowingly failed to pay the employee for time worked.
The policy shoud also state that all time records submitted are subject to review. Upon review appropriate adjustments will be made and the employee will be paid accordingly.
Mr. Swartz points out that the FLSA does not require any particular method of tracking time, so you can use any method you want and hold employees to using those methods. But given this new wrinkle it might be a good time to review your timekeeping system. Since you the employer are responsible for maintaining proper payroll records incorporating alternative timekeeping methods will require that you collect and maintain the information. Review your policy, review your methods and, if using a timekeeping system, review the assumptions written into the system to make sure you are not skipping time that has been worked. For example, some systems have an automatic lunch deduction built in. What if the person is actually working through lunch? Are you aware of that and have you adjusted for it?
Making supervisors and managers aware of the policy changes and training them on handling alternative timekeeping methods is important. As my fellow presenter, attorney Vincent Lynch, reminded the attendees FLSA lawsuits can be very expensive to defend and very expensive to lose. So it is important to have a good policy, informed employees and informed managers. The FLSA is full of “gotchas” that the DOL is trying to take advantage of with Timesheet. So be aware.